DUKHA LAL CHOUDHURI Vs. MTMANABATI

JUDGEMENT

(1.) This is an appeal under the Letters Patent from the decision of a Judge of this Court in a second appeal arising out of a suit for arrears of rent in respect of an istimrari mukarrari tenure held by the defendants. The only substantial point which was raised in defence is set out in para. 4 of the written statement which runs as follows: The entire mukarrari property aforesaid was from before the years in suit subject to diluvion and was full of sand and jungle and was quite unfit for cultivation on account of overflow of the river Kosi. Hence the plaintiff is not at all entitled to get rent for the years in suit, rather this defendant is entitled to an "abatement of rent.

(2.) The learned Munsiff before whom the suit had been instituted deputed a Commissioner to make a local investigation and report whether the land in suit was fit for cultivation during the years in suit. When the Commissioner went to the spot he found that out of 107 bighas odd of land comprised in the tenure 81 bighas odd were covered with jungle, 21 bighas had certain crops and the remaining 4 bighas odd were cultivated but bore no crops at the time. After a minute observation of the condition of the land the Commissioner came to the conclusion that no portion of the land could have been fit for cultivation during the years in suit and the learned Munsif relying on his report which was supported by the oral evidence of the defendant held that the plaintiff was not entitled to recover any rent for the period in suit. When the case went up in appeal the learned District Judge accepted the finding of the Munsif that the lands were not fit for cultivation but he assessed a nominal rent of four annas a bigha upon the land on the basis that some profit could be made by the defendants even out of the jungle lands for the purpose of grazing cattle; for this the tenants should be required to pay rent. From the decision of the learned Judge the plaintiff appealed to the High Court claiming his full mukarrari rent, while the defendants preferred a cross-objection claiming complete abatement of rent. The appeal was heard by Mr. Justice James who reversed the decision of the District Judge and restored the judgment of the Munsif. The plaintiff has now preferred this appeal under the Letters Patent.

(3.) It is no longer disputed that the land was in fact wholly unfit for cultivation and was not cultivated during the years in suit; it is also conceded that if the defendants had been occupancy raiyats they would on the findings arrived at by the Courts below be entitled to claim reduction of rent under Section 38, Ben. Ten. Act. It is, however, strongly contended that a tenant holding under an istimrari mukarrari lease cannot avail himself of the benefit of Section 38. The Courts below have rejected this contention and held that the principle underlying Section 38 is applicable to all tenancies and for this view they have relied upon the decision of a Division Bench of this Court in Sukhraj Rai V/s. Ganga Deyal Singh 1922 Pat 169, which again appears to be based on the decisions of Sir Barnes Peacock in Sheikh Enayutoollah V/s. Sheikh Elahibuksh (1864) WR 10, Rulings 42 and Afsurooddeen v. Mt. Shoroshee Bala Debi (1863) MR 558. As one of the contentions on behalf of the appellant was that Sir Barnes Peacock has stated the law in too wide terms it becomes necessary to examine the question in some detail. In Sheikh Enayutoollah V/s. Sheikh Elahibuksh (1864) WR 10, Rulings 42 the tenant who was sued claimed reduction on the ground (1) that part of his land had been washed away and (2) that part of it had been so covered with sand as to have been rendered wholly useless. A question then arose as to whether there was anything in the original lease by which the tenants had been inducted on the land to prevent them claiming reduction. Sir Barnes Peacock, C.J., and Shambhoo Nath Pandit, J., remanded the case for a determination of the terms of the lease but in so remanding it held that if either of the two allegations made by the tenant was proved he was entitled to claim reduction of rent. In the judgment in that case which was delivered by Sir Barnes Peacock he referred to the following passage in Bacon's Abridgment, 7 Edn., Vol. 2, p. 63: In this place we are to consider whether the tenant shall pay the whole rent, though part of the thing demised be lost and of no profit to him, or though the use of the whole be for some time intercepted, or taken away without his default; and here it seems extremely reasonable that, if the use of the thing be entirely lost or taken away from the tenant, the rent ought to be abated or apportioned because the title to the rent is founded upon this presumption: that the tenant enjoys the thing during the contract, and therefore if part of the land be surrounded or covered with the sea, this being the act of God, the tenant shall not suffer by it, because the tenant without his default wants the enjoyment of part of the thing which was the consideration of his paying the rent; nor has the lessee reason to complain, because, if the land had been in his own hands, he must have lost the benefit of so much as the sea has covered.